Breach of Trust: How Government agencies are working with Enbridge, Inc. to Jeopardize Tribal Treaty Rights

“Nothing in this agreement requires any state or federal agency to approve a permit for Enbridge.”

These were the words spoken to tribal representatives – including myself – by attorneys for the United States Department of Justice and Environmental Protection Agency during a meeting earlier this month in Traverse City, Michigan regarding Enbridge’s Line 5 Pipeline.

Earlier this year, the EPA and DOJ began working with Enbridge on a settlement agreement relating to Enbridge’s Line 5 pipeline beneath the Straits of Mackinac. You can read that agreement HERE.

I wrote about this agreement on Turtle Talk several months ago, which I encourage you to read to better understand this post. Seriously. Read it HERE. That blog entry describes how the EPA and DOJ were working – quietly – to ensure that Enbridge is able to continue to operate the Line 5 Pipeline in the waters of the Great Lakes.

Some background:

The Line 5 pipeline is nearly seven decades old, and transports Canadian oil from Superior, Wisconsin to Ontario (through) – providing no oil to the people of Michigan or the United States. It has already outlived its intended lifespan. The pipeline runs through the heart of the waters ceded by Ojibwe and Odawa tribes through the 1836 Treaty of Washington. Our tribes retained the right to fish in the ceded waters under that treaty; a fact that was confirmed in the landmark case of United States v. Michigan. Earlier this year, the Line 5 Pipeline was damaged when a ship anchor accidentally struck the pipeline. The anchor strike also damaged a nearby electrical transmission line, causing hundreds of gallons of toxic chemicals to leak into Lake Michigan and Lake Huron.

The Line 5 Pipeline poses grave risks to the people who depend upon the waters of Lake Michigan and Lake Huron, including our tribal fishermen. A majority of people in Michigan, including every federally recognized tribe within the State, wants this pipeline shut down. The pipeline’s crossing of the Straits of Mackinac provides no benefits to the people of Michigan, but forces us to bear enormous risks.

It was for those reasons that the 1836 Treaty Tribes objected to the EPA’s and DOJ’s proposed deal with Enbridge.

In numerous letters, and in-person, we explained to federal officials that Enbridge would use this agreement to circumvent environmental laws and force state and federal agencies to grant the permits necessary to keep the Line 5 Pipeline in place.

At our August 7^th meeting in Traverse City, EPA and DOJ officials tried to assure tribal representatives that we had no reason to be concerned about their agreement with Enbridge. “Nothing in this agreement,” they stated, “requires any state or federal agency to approve a permit for Enbridge.”

You can imagine the surprise when representatives of the Michigan Department of Environmental Quality (MDEQ) informed tribal officials at a meeting this week that the MDEQ may be required to issue a permit to Enbridge as a result of that agreement.

Somebody is lying.

The State of Michigan wants to authorize Enbridge to drill a tunnel beneath the Straits of Mackinac to allow the Line 5 Pipeline to continue to operate beneath the waters of the Great Lakes in perpetuity. Michigan’s tribes expect that Michigan Governor Rick Snyder will approve the construction of a tunnel sometime this year, prior to the expiration of his term in office.

But, it will take several years to bore a tunnel beneath the Straits of Mackinac. The State of Michigan appears to want Enbridge to make structural changes to the Line 5 Pipeline in the meantime to provide political cover secure the pipeline.

So, what does all of this convoluted complaining mean? This:

All of the bureaucratic actions relating to Enbridge’s pipeline over the past year are intended to make sure that Enbridge can tunnel through the lakebed and keep the oil flowing beneath the waters of the Great Lakes in perpetuity. And it is coming to a head in the next several months.

The United States Government promised the 1836 Treaty Tribes that its agreement with Enbridge would not require agencies to give Enbridge the permits it needs. The State of Michigan is saying that the agreement may require it to give Enbridge the permits it needs.

Somebody is lying. And they are doing it to help a Canadian company deliver Canadian oil to Canadian markets at the expense of our tribal treaty rights.

Will the EPA allow the Line 5 Pipeline to remain in the Straits of Mackinac?

The Enbridge Line 5 Pipeline has stirred controversy in Michigan for most of the past decade. This pipeline carries Canadian oil products from Superior, Wisconsin to southern Ontario via Michigan.

A five-mile span of the pipeline runs along the lake-bed beneath the Straits of Mackinac, from Michigan’s Upper Peninsula to the Lower Peninsula. If When this pipeline ruptures, it can release up to one million gallons of oil into the heart of the Great Lakes – the largest source of freshwater on the planet.

A recent public opinion poll shows that a majority of Michigan citizens want the Line 5 Pipeline shut down entirely; and, nearly two-thirds of northern Michigan residents want the Line 5 Pipeline shut down.

The Bay Mills Indian Community, along with every other federally recognized tribe in Michigan, wants the Line 5 Pipeline shut down and removed from the Great Lakes. An oil spill in the Straits of Mackinac would destroy the drinking water source for many of our communities, cause lasting damage to our environment and public health, and irreparably damage the fishing rights our tribe reserved in the 1836 Treaty of Washington.

The concern about the safety of this pipeline is not hypothetical: in 2010, a separate pipeline owned & operated by Enbridge broke open, and spilled more than 800,000 gallons of oil into the Kalamazoo River system in southern Michigan.  It was the largest on-shore oil spill in the history of the United States. Earlier this year, a boat dropped an anchor in the Straits of Mackinac, damaging the Line 5 Pipeline itself and causing a chemical spill from an adjacent electrical transmission line.

The State of Michigan has responded to the public scrutiny of the Line 5 Pipeline by studying the situation. In November 2017, the State of Michigan signed an agreement with Enbridge to allow the Line 5 Pipeline to continue to operate beneath the Straits of Mackinac under certain restrictions (for the time being). The State is also continuing to study some alternatives to the existing pipeline; including whether the Line 5 Pipeline should be moved into a tunnel beneath the Straits.

Michigan’s tribes, and the public, have focused on engaging the State of Michigan in its review process.

While we have all been engaged on the State’s review process, it appears that the Federal Environmental Protection Agency has been working with Enbridge to ensure that it is able to continue to operate the Line 5 Pipeline for the foreseeable future.

The timeline of events can get a little confusing, but I will set it out here as clearly as possible:

• Several years after the 2010 Enbridge oil spill in the Kalamazoo River System, the U.S. Environmental Protection Agency and the U.S. Department of Justice filed a lawsuit against Enbridge. The lawsuit related to Enbridge pipelines operating in southern Michigan and Illinois.
• In 2016, at the end of the Obama Administration, the Federal Government negotiated a settlement agreement with Enbridge. That agreement required Enbridge to take certain steps to make its pipelines safer. It also required Enbridge to make certain changes to the Line 5 Pipeline beneath the Straits of Mackinac – which had nothing to do with the Kalamazoo River System oil spill. The EPA and the Department of Justice did not notify the tribes who have protected treaty rights in the Straits of Mackinac that the Federal Government was proposing changes to the Line 5 Pipeline. I wrote about this issue here.
• Upon learning about the proposed settlement agreement, the Grand Traverse Band of Ottawa and Chippewa Indians filed a pleading in the case to object to the agreement. The Court simply ignored the pleading, and did not issue a ruling on it. The EPA and DOJ met with the Michigan tribes to hear their concerns, but made no changes to the agreement and made it clear that they were not obligated to consult.
• The settlement agreement was finalized and entered as a Federal Court order in 2016.

Over the past several years, Enbridge has been working to make structural changes to the Line 5 Pipeline a little bit at a time. This work has included replacing and installing new anchor supports. Enbridge’s work has been exempted from scrutiny under the National Environmental Policy Act, because each action has been relatively minor.

The National Environmental Policy Act, and related federal regulations are intended to prohibit “segmentation” – breaking a large environmental impact into very small pieces, in order to avoid environmental review.

Earlier this year, Enbridge filed a request with the U.S. Army Corps of Engineers for permission to install 48 new anchor supports on its Line 5 Pipeline. In a change from its previous practice, the Army Corps of Engineers agreed to consult with Michigan’s treaty tribes over this large-scale construction work on the Pipeline. The Army Corps went even further, and announced that it would actually require Enbridge to undergo the review process under the National Environmental Policy Act.

This was a large step, and a recognition by the Army Corps of Engineers that Enbridge was going far beyond small repairs and maintenance on the Line 5 Pipeline. It appears that the Army Corps of Engineers recognized what has been apparent for some time – Enbridge is effectively trying to construct a new pipeline beneath the Straits of Mackinac.

This is where the EPA comes in.

On May 3, 2018, the EPA issued a letter to several tribal leaders in Michigan (including myself) informing us that they were proposing an amendment to the 2016 settlement agreement with Enbridge that would require allow Enbridge to install new anchor supports on the Line 5 Pipeline beneath the Straits of Mackinac. The EPA informed the tribes that, if we wished to comment on changes to the settlement agreement, we would have to meet EPA officials within 10 days to do so.

The Tribes were not provided with copies of the proposed changes to that agreement. Nearly a month later, we still haven’t seen the proposed changes (we’ve asked).

Here is the consequence of the EPA’s secret negotiations with Enbridge: If the EPA and Enbridge change their settlement agreement to allow Enbridge to install dozens of new anchor supports on the Line 5 Pipeline, the Federal Court will approve the agreement and enter it as a Court Order. Federal court orders have the force of law, and federal agencies have no discretion on whether to comply with the law. This means that federal agencies would have no discretion to deny Enbridge’s request to change the Line 5 Pipeline.  When a federal agency doesn’t have discretion to make a decision, it is often exempted from conducting environmental review.

The ultimate conclusion would be that Enbridge could effectively be allowed to construct a new oil pipeline beneath the Straits of Mackinac without any public scrutiny or environmental review process. And, our Great Lakes and tribal treaty rights will be put at greater risk without any meaningful chance to provide input to our Trustee – the United States Federal Government.

IS THE TRUMP ADMINISTRATION PREPARING TO GUT THE INDIAN REORGANIZATION ACT?

Last week, I posted an entry on this blog highlighting particular concerns with the Trump Administration’s proposed changes to Department of the Interior’s land-into-trust regulations.

I received a number of messages in response to that post, including one from a friend and colleague who asked this question: What if the purpose of these changes is to limit the Indian Reorganization Act’s land-into-trust provisions to the tribes that were allotted under the Dawes Act?

In my own mind, I’ve chalked-up the Trump Administration’s proposal to an attempt to slow or stop lands from going into trust, and to claim more authority to reject tribal applications. But, my colleague raised a question that merits a clear answer from the Administration.

There is a legal theory advanced in some circles that the Indian Reorganization Act’s land-into-trust language was merely intended as a remedy for those tribes that had their lands allotted and taken under the Dawes Act. The Trump Administration’s proposed requirements would be consistent with this legal theory (although, reading the IRA in this manner is absurd in its own right, as discussed below).

The House Natural Resources Committee cited this theory in a memorandum it published in 2015:

In Carcieri v. Salazar, the Court held that the trust land provisions of the IRA may benefit only tribes that were “under federal jurisdiction” on the date of enactment of the Act, or June 18, 1934. These are generally tribes with reservations subjected to 19^th century allotment laws.

The Natural Resources Committee published another memo on July 11, 2017 repeating its attempt to narrow the Indian Reorganization Act:

Though enacted to remedy a loss of lands by Indians through the operations of allotment laws including the General Allotment Act, the authority for the Secretary to acquire lands for Indians under Section 5 [of the Indian Reorganization Act] has not been amended by Congress in the last 83 years.

***

Seeking to redress Indians’ loss of land, Congress enacted the IRA in 1934. The IRA prohibited further allotment, put remaining allotments still owned by Indians back in federal trust, and authorized the Secretary to acquire lands in trust for individuals and tribes to restore their property.

This view of the Indian Reorganization Act amounts to revisionist history. Federal courts, including the Supreme Court, have consistently disagreed with this narrow reading.

The express language of the IRA contemplates that off-reservation land would be placed into trust, and that the Secretary of the Interior would acquire land for landless tribes and “proclaim new Indian reservations.” President George W. Bush’s Solicitor General – Paul Clement – argued to the Supreme Court in a 2006 brief that the IRA was intended to “expand tribal lands” and to promote tribal economic development and self-governance.

Nevertheless, my colleague raises legitimate (and concerning) questions about whether the Trump Administration subscribes to this revisionist understanding of the IRA.

Some of the language in the Department’s proposed regulations lend support to the idea that the Trump Administration wants to limit the Indian Reorganization Act to those tribes whose reservations were allotted; or, at a minimum, to those tribes that were federally recognized in 1934. This would be consistent with a desire to take an “off ramp” from the United States’ trust responsibility to Indian tribes, as it dramatically scales back a major part of the Department’s fiduciary obligations.

In last week’s entry, I noted that the Trump Administration was adding more hurdles to the land-into-trust process, including a requirement that tribes show a “historical connection” to any off-reservation parcel of land they want placed into trust. The proposal would also require tribes to show whether off-reservation lands consolidate existing tribal lands and reduce checkerboard jurisdiction. Here is what I had to say about this requirement:

This requirement is absurd on its face for one simple reason: off-reservation applications, by their very nature, will neither consolidate lands nor reduce checkerboard jurisdiction. There is no requirement in the Indian Reorganization Act to make this showing.

But, this requirement would be consistent with a view that the IRA applies to tribes that had their reservations allotted and diminished between 1888 and 1934: off-reservation parcels within former reservation boundaries could be understood to consolidate former landholdings. This could also explain the “historic connection” requirement that the Trump Administration has advanced.

In my post last week, I also acknowledged that “I don’t know what to make of [the] new requirement” that tribes explain the legal authority to have lands placed into trust, in addition to whether the tribe was “under federal jurisdiction in 1934.” I explained that this requirement is redundant, because a tribe relying on the IRA as the legal authority to have lands placed into trust must necessarily demonstrate that it was under federal jurisdiction in 1934 – that is a requirement of the IRA.

But, again, if you view the IRA’s land-into-trust provisions solely as a remedy for tribes that had their reservations allotted, it might make some bureaucratic sense to split these questions apart.

A revisionist view of the IRA may also explain why the Trump Administration is only consulting with western tribes regarding these proposed changes.

The Trump Administration has yet to provide any policy justification for changing the land-into-trust process. The proposed changes were not something Indian country has been demanding. Quite the opposite.

At last week’s meeting of the National Congress of American Indians, some Administration officials tried to sell these changes to tribal leaders as a helpful “streamlining” of the regulatory process. (Only in a George Orwell novel can increasing the number of bureaucratic hurdles be described as “streamlining,” but I digress).

But, earlier this year, Associate Deputy Secretary of the Interior James Cason described the need to do more to help local communities that oppose placing lands into trust for Indian tribes.

Before these regulations are officially proposed, the Trump Administration must explain its own understanding of the Indian Reorganization Act, and why these changes are necessary to advance its purpose. Tribal consultation is pointless if tribes don’t first understand the purpose behind this effort.

Does the Trump Administration believe that the Indian Reorganization Act’s land-into-trust language is limited to tribes that had their reservations allotted? Does the Trump Administration believe that the Indian Reorganization Act applies only to those tribes that were federally recognized in 1934? Does the President’s nominee for Assistant Secretary – Indian Affairs hold these views?

If the Trump Administration answers yes to any of these questions, it will be turning nearly a century of federal Indian policy on its head. Worse, it will amount to a “gutting” of the IRA for a majority of tribes across the United States.

Breakdown: A closer look at the Trump Administration’s proposed land into trust regulations

The Trump Administration has been signaling its intent to limit when, where, and how tribes can have land placed into trust status since the beginning. Those signals have been discussed at length here on TurtleTalk, including here, here, and here.

Earlier this month, the Department of the Interior released its proposed amendments to federal regulations governing how off-reservation lands are placed into trust status. Those proposed regulations are available here: Consultation Draft – Trust Acquisition Revisions. John Tahsuda, the Acting Assistant Secretary for Indian Affairs also issued a letter to tribal leaders announcing the Department’s schedule for consulting with tribes on these proposed regulations. That letter is available here: DTLL – Trust Acquisition Revisions. The Department also published a “Summary Sheet” for these proposed changes, and you can read that here:Summary Sheet – Trust Acquisition Revisions .

I have put together this document, which allows you to do a side-by-side comparison of the existing regulations and the regulations proposed by the Trump Administration:Side by Side 151 Regs.

Overview & Initial Thoughts

My intent is to provide a breakdown of the proposed changes, and their practical effect on tribes. So, I don’t want to editorialize…too much. But, here are my broad views and initial thoughts:

• These changes are being put forth before we even have a nominee for the Assistant Secretary – Indian Affairs. Given the length of time it takes to hatch and develop regulations, it is clear that these changes are being pushed by the leadership of the Department.  Indian country was not asking for these changes.
• The land into trust process is already time consuming and expensive. This process will make it more time consuming and more expensive for tribes to put land into trust. It will also further politicize this process – meaning that tribes without strong political connections to Department leadership will face more obstacles.
• These proposed changes make it easier for the Department to reject applications to place land into trust, and they give opponents of land into trust enormous leverage to delay and kill tribal applications.
• Most of these proposed changes have absolutely no basis in any law. In other words, this new policy was pulled out of thin air.
• In a similar vein, these proposed changes address problems that simply don’t exist. We’ve covered this ground before here. (Seriously, read our earlier post for context).
• The proposed changes will particularly hurt tribes with smaller land-bases – where many applications are for off-reservation lands – especially in the Great Lakes, California, and Pacific Northwest. It is unconscionable that the Department would institute these changes without even coming to the Great Lakes region to consult with affected tribes. (And no, a “listening session” at this week’s NCAI convention in Milwaukee doesn’t qualify as consulting with Great Lakes-area tribes).
• These proposed regulations hurt tribes and help almost nobody.

Breakdown

I’m going to try to go point-by-point through some of the major changes. Feel free to add your own thoughts in the comments, or to disagree or clarify. Here we go…

1. Splitting “gaming” applications from other land into trust applications

The proposed changes require tribes to meet different requirements based upon whether the application is for gaming purposes or non-gaming purposes. This is the new 25 CFR § 151.11(a)(1).

The decision to split these two types of applications has absolutely no basis in law whatsoever. In fact, creating an entirely separate land-into-trust process for tribal gaming applications is against the law.

When Congress enacted IGRA, it generally prohibited gaming on off-reservation lands acquired after 1988. It also created a number of exceptions to this prohibition (you may have heard about this). In creating this prohibition, along with the exceptions, Congress sent a pretty clear message that it did not want the Department of the Interior to change its land-into-trust process:

(c) Authority of Secretary not affected

Nothing in this section shall affect or diminish the authority and responsibility of the Secretary to take land into trust.

By creating a separate land into trust process for gaming applications, the Department is certainly “affecting” its authority and responsibility to put land into trust. This is a pretty blatant thumbing of the proverbial nose toward Congress.

Moreover, the creation of a separate process for gaming applications is an attempt to address a problem that simply doesn’t exist. Less than 5% of tribal requests to have land placed into trust are for gaming purposes. Worse yet, this proposal layers bureaucracy on top of bureaucracy. The Department already has regulations governing land into trust. You can read them for yourself here.

2. Gaming application requirements

I don’t want to spend too much time focusing on gaming. But, there are a few things worth mentioning. First, under the proposed changes, tribes must identify the unemployment rate on their reservation (if they have one), and explain how gaming will be used to create jobs on the reservation.

For many tribes, employment data can be very difficult to obtain. Second, the need to explain how gaming will be used to “create jobs” is another requirement that has no basis in any law. It’s simply made up.

Jobs are a very welcome byproduct of tribal gaming, for sure. But, the purpose of tribal gaming is to generate revenues for tribal governments. The same holds true for state lotteries, which are used to generate government revenues without any focus whatsoever on creating in-state jobs.

Even Congress acknowledged this fact in the very first of its “findings” when adopting IGRA: “numerous Indian tribes have become engaged in or have licensed gaming activities on Indian lands as a means of generating tribal governmental revenue[.]” (25 U.S.C. § 2701(1)).

This is a sly attempt to shift three decades of federal policy through administrative means.

3. New requirements for tribal applications

The Department’s proposal adds three new, and troubling requirements, for tribal applications to place off-reservation land into trust.

First, tribal applicants would be required to demonstrate both a historical and a modern connection to the land. I hate to keep using this refrain, but there is no basis in law for this requirement. None. It is made up.

It is true that the Department and the Courts have applied these requirements to determine whether tribes can conduct gaming on certain parcels of lands. But those requirements are traced to IGRA itself, and they apply in a limited number of instances.

The requirement to show a historical connection to a parcel of land for every off-reservation application has never been used before. How will this standard be applied to tribes that were removed from their aboriginal homelands? At what point does “history” begin? What about instances where tribes shared historic use of a territory? The proposed regulations doesn’t answer these questions – which means they will be answered as tribes sit and wait for decisions on their applications (and, later, as a court decides the answers to these questions).

Second, the proposed regulations add a requirement for tribes to explain “whether the acquisition will facilitate the consolidation of the Tribe’s land holdings and reduce checkerboard patterns of jurisdiction[.]”

This requirement is absurd on its face for one simple reason: off-reservation applications, by their very nature, will neither consolidate lands nor reduce checkerboard jurisdiction. There is no requirement in the Indian Reorganization Act to make this showing.

Third, a tribe must explain “whether the Tribal government can effectively exercise its governmental and regulatory powers at the proposed site.”

Once again, there is no statutory basis for this requirement. More troubling is the fact that political decision-makers in the Department’s Washington, D.C. headquarters will be responsible for evaluating effective tribal government. What constitutes an “effective exercise of governmental and regulatory power”? Will tribes be penalized for not having a lot of money to spend to exercise jurisdiction? Will tribes be penalized for their past sins? What standard do we have to meet?

Together, these new requirements present considerable obstacles for tribes that are simply trying to acquire more land. They add to the regulatory burden tribes must bear.

The practical purpose of these requirements is to provide more reasons for Department officials to disapprove tribal applications. They do little to advance the federal trust responsibility.

4. A new “two-step” process – two hurdles to clear

In another dramatic departure from longstanding policy, the Department is proposing to create a “two-step” process for tribes to acquire off-reservation lands into trust. The proposed changes create an “initial review” where the Secretary of the Interior in Washington, D.C. has an opportunity to disapprove tribal applications before the completion of environmental and legal review (more on that in a moment).

If the Secretary determines during an initial review “that the application fails to address, or does not adequately address, the information required [above] the Secretary will deny the application and promptly inform the applicant in accordance with section 151.12.”

This added step creates a political screening process for the Department to use to weed-out tribal applications that are controversial or face opposition from well-connected parties. In short, it will further politicize the process by which tribes place land into trust – moving beyond the initial screening stage of applications will become a political battle. Tribes that are too poor to marshal political resources will fare much worse than those that can afford to go toe-to-toe with wealthy and coordinated opponents.

(I will admit to speculating on this point. But, I don’t believe it requires a leap of logic to reach these conclusions).

If a tribe is able to clear the first step in this process, it must then complete the second step – where its application undergoes environmental and legal review. The proposed regulations add a curious, and redundant, requirement to this phase.

The Department’s existing regulations require a tribe to show “the existence of statutory authority” for land to be placed into trust. Where there are concerns or questions that a tribe may not be able to have land placed into trust as a result of the Supreme Court’s opinion in Carcieri, the Department conducts a legal review to determine whether the tribe was “under federal jurisdiction” in 1934 (which is a requirement of the Indian Reorganization Act).

The Department’s proposed regulations keep this requirement – a tribe would still be required to show “the existence of statutory authority” for land to be placed into trust. But, in step two of this new process, a tribe must also submit “any information in support of the Tribal applicant being ‘under federal jurisdiction’ in 1934.”

I don’t know what to make of this knew requirement. It appears to be redundant. It is likely to cause confusion. And, I am unsure of how this will be used to alter the Department’s interpretation of the Carcieri decision.

5. Getting rid of the “Patchak Patch” – aka reinstituting the 30-day wait to have land placed into trust.

The last major change that I wanted to address is the Department’s proposal to reinstitute the old policy of waiting for 30 days to place land into trust status after a tribal application has been approved.

Prior to the Supreme Court’s 2012 decision in the Patchak case, there was a belief that the Department of the Interior was immune from lawsuits challenging decisions to place land into trust for tribes once the land was actually placed into trust status. To allow for people to challenge those decisions (and to stave-off a Supreme Court decision finding the entire land-into-trust process to be unconstitutional), the Department had a policy of waiting 30 days to place land into trust after it had approved a tribe’s request. Interested parties were given 30 days to file a lawsuit. Once they filed that lawsuit, the Department waited for the lawsuit to finish to actually put that land into trust.

The Supreme Court ruled in the Patchak case that the Department was not immune from lawsuits filed after land was actually placed into trust. In response, the Department changed its regulations to “patch” the harm caused to tribes by the Patchak case. Under those changes, the Department would not wait to put land into trust after it approved an application, and opponents could file an administrative appeal (if applicable) or file a lawsuit in federal court within 6 years – the federal statute of limitations. The changes were designed to speed-up the process after a decision was already made, and to try to move most legal challenges into the Department’s administrative appeals board – the Interior Board of Indian Appeals.

Short simple version: After the Patchak case, tribes generally wouldn’t be made to wait for years to have land placed into trust status after they had already won approval.

The Department’s proposed changes get rid of these changes and go back to the old policy of waiting 30 days to place land into trust (or, potentially, longer if a lawsuit is actually filed).

There is simply no rational legal or policy basis to go back to that practice. The Supreme Court has ruled that interested parties can challenge the decision to place land into trust status for tribes even if the land was already placed in trust.

The only conceivable reason for going back to the old approach is to make tribes wait longer to have land placed into trust. This would apply even in instances where opponents have filed the most baseless and frivolous challenges.  And, while tribes bear the cost of litigating those challenges, they must also continue to pay property taxes on the parcel.  Again these requirements would apply even after the Department decided that the land should be placed into trust status.

Conclusion

I know there is a lot to take in, but these proposed changes are dramatic. And, if you are a tribe that doesn’t have a large consolidated land base, these proposed changes will make it harder to have lands placed into trust. They will also put more of a financial burden on tribes seeking to place land into trust, and further politicize this process.

The Department’s consultation period ends on December 15th (without any consultation sessions east of the Mississippi River). Tribes should submit their comments to consultation@bia.gov.

The BIA’s land-into-trust process & why changes will never satisfy the critics.

The Department of the Interior has announced that it will be amending its regulations governing how Indian tribes acquire lands outside of existing Indian reservations. There’s been a lot of speculation about these changes, but many assume that they will make it even more difficult for tribes to have lands placed into trust. Before commenting on current issues surrounding the land-into-trust process, it is important to understand how we got here.

The IRA and the BIA’s Response to Land-into-Trust Opponents

Congress enacted the Indian Reorganization Act in 1934, which brought an end to the shameful era of federal Indian policy we now call “The Allotment Era.” During the Allotment Era, Indian tribes across the United States saw their collective landholdings reduced by more than 90 million acres; between 1888 and 1934, Indian tribes collectively lost nearly twice as much land as they own today.

Congress gave the Secretary of the Interior the ability to place more lands in trust status for Indian tribes in straightforward language:

The Secretary of the Interior is hereby authorized, in his discretion, to acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee be living or deceased, for the purpose of providing land for Indians. (emphasis added)

As you can see from the bolded language, Congress intended for the Secretary of the Interior (i.e. the BIA) to put off-reservation land into trust for Indian tribes – way back in 1934. This congressional policy has remained unchanged ever since.

From 1934 until 1980, there were no federal regulations to govern the process by which the BIA put land into trust for Indian tribes. Then, in 1980, the BIA adopted its original land-into-trust regulations at 25 C.F.R. Part 120.  (worth reading). The Preamble to the BIA’s original land-into-trust regulations highlights some of the criticism about off-reservation land going into trust. Here are two notable passages that continue to be relevant today:

The definition of a “tribal consolidation area” set out in proposed § 120a.2(i), now (h), was criticized because some tribes do not now have an Indian reservation and because the expression “in close proximity to” was not precise. To partially resolve these difficulties, the offending language has been deleted.

The passage above shows the BIA recognized back in 1980 – nearly 40 years ago – that many tribes seeking to have land placed into trust status did not have an existing reservation; and, that federal policy should not restrict the ability of tribes without an existing reservation to establish homelands.

In adopting its regulations, the BIA also addressed concerns submitted by local governments:

Many objections were received about the acquisition of fee lands in trust status. These comments primarily concerned the erosion of tax base and the serious jurisdictional problems that can arise when land outside of reservation is acquired in trust status. Many of the suggestions go beyond the scope of existing statutory authority and the proper purview of these regulations: e.g., the proposal that in-lieu taxes be paid for land transferred from fee to trust status.

As you can see, the BIA acknowledged that there is no legal authority to publish regulations requiring tribes to make tax payments to local governments in exchange for putting land into trust or to subject tribal trust lands to local control.

The BIA’s original land-into-trust regulations did not distinguish between on-reservation and off-reservation land acquisitions – owing to an understanding that the IRA does not make such a distinction.

Those regulations were amended in 1995 to their current form. The current regulations created separate processes for tribes to have land put into trust within and without existing reservations. Here are the 1995 amended land-into-trust regulations. A review of the Preamble to the 1995 rules shows that many of the changes were made to address concerns about off-reservation acquisitions. Here are some notable statements from the BIA at the time:

The BIA has instructed its field offices that proposed acquisitions of off-reservation contiguous lands for commercial purposes should be carefully scrutinized with consultation considered to avoid jurisdictional conflicts. The new [regulation] establishes a consultation process which may give rise to agreements which could result in resolution of the above types of regulatory issues.

Between 1980 and 1995, the BIA’s understanding of the land-into-trust process changed from a view that tribal-local jurisdictional agreements “go beyond the scope of existing statutory authority” to a view that encourages such agreements. In light of this change, many tribes actively sought to reach inter-governmental agreements with state and local governments before asking to have lands placed into trust.

The BIA also included these comments:

The new [regulation] allows landless tribes (i.e. those without any trust lands) to acquire land within their aboriginal homelands, subject to the other restrictions in 25 CFR 151.11 [the new regulation governing off-reservation trust acquisitions].

***

The blanket exception for landless tribes has been narrowed to require that any lands to be acquired on behalf of such tribe be located in a state in which the tribe’s aboriginal homelands are located.

In these passages, we can see a gap emerging between Indian tribes that have consistently maintained a land-base since 1888, and tribes that have not. Tribes that did not have a land-base were required to go through a more rigorous process to have lands placed into trust, and show aboriginal ties to newly acquired lands. This change did not reflect any change in Congressional policy.

The BIA also explained that the new regulations would impose a higher standard for tribes seeking to place off-reservation land into trust in urban communities:

[T]he new 25 CFR 151.11(b) will already require that tribes whose reservations are not located in urban communities provide a “greater justification” when lands in such communities are to be acquired.

The 1995 regulation amendments made the process of acquiring off-reservation land into trust more costly and time-consuming, and ensured that considerable weight would be given to local concerns.

Notwithstanding its efforts to placate the concerns of state and local governments about Indian tribes acquiring more land, the Department of the Interior defended lawsuits challenging the constitutionality of the IRA’s land-into-trust language. The federal courts consistently rejected those arguments in cases out of South Dakota, Michigan, and Rhode Island (Carcieri).

In 2008, the George W. Bush Administration further restricted the ability of Indian tribes to place land into trust outside of existing reservations through an unspoken moratorium on acquiring land in trust, a a notorious “Guidance Memorandum” that effectively stated that Indian tribes could only acquire lands in trust if those lands were within a “reasonable commuting distance” from their existing reservations. You can read that Guidance here.

The Obama Administration rescinded the Guidance Memorandum in 2011, explaining that there was no basis in the law for such a requirement.

The Facts About the Land-Into-Trust Process

I realize that this post is already long, but the history of this process is important. In 1934, Congress authorized the Secretary to place land into trust for tribes on the reservation and off the reservation. There were no caveats or restrictions on the purpose of this authority – it was intended to ensure that tribes could establish or restore their homelands.

This policy has steadily grown more restrictive through bureaucratic action. And still…the same old criticism has persisted.

You can see from the BIA’s fee-to-trust regulations in 1980 that the basic arguments against putting land into trust have remain largely unchanged over 40 years: Indian tribes are taking land out of local jurisdiction, undermining local zoning regulations, and taking local tax revenues. Since IGRA’s passage in 1988, gaming has also been thrown into the mix.

This criticism has consistently come from the same places – States like South Dakota (which challenges many tribal applications to place land into trust as a matter of course); a few local governments in California, Connecticut, and Wisconsin; and groups like the Citizens Equal Rights Alliance and Stand Up! California.

The notion that the Federal Government is putting too much land into trust without regard to local interests is #fakenews. The facts show this to be true.

In the past 8 years, the BIA has approved approximately 2,200 requests to place land into trust for tribes. Of those decisions:

• 80 to 90 percent were for lands within, or contiguous to, existing reservations;
• 90 percent did not face legal challenge;
• 817 of the acquisitions were for “Agriculture”;
• 615 of the acquisitions were for “Infrastructure”;
• 411 acquisitions were for “Economic Development”;
• 334 acquisitions were for “Housing”; and,
• A mere 21 (less than 1%) were for “Gaming”.

The IRA worked to stop more lands from being taken away from Indian tribes; but, it has hardly made a dent in allowing tribes to restore parts of their original landholdings. The process to place a single parcel of land into trust can take years, and can cost tens or even hundreds of thousands of dollars (even without gaming involved).

Despite all this, the same criticism hurled at the BIA in 1980 is still used today.

One recent law review article often cited by opponents of placing land into trust called this process “extreme rubber stamping.” It highlighted the fact that, between 2001 and 2011, the BIA approved 111 applications to place land into trust in California. Only 14 of the trust acquisitions cited in the article were for off-reservation lands.

There are currently 110 federally recognized Indian tribes in California. This means that, over an entire decade, the BIA approved one solitary acquisition of land for each tribe in California – including just 14 for off-reservation lands.

And this is labeled as a crisis!

Proposed Changes to the BIA Regulations

Based on recent statements by Department of the Interior officials, we can expect the off-reservation land-into-trust process to be made even more difficult for tribes. This will severely impact those tribes without an existing or consolidated land base.

In nine decades, Congress has never passed a law stating that off-reservation land acquisitions should be harder than on-reservation acquisitions. Congress has never required that tribes have “aboriginal ties” to trust lands, or that those lands be within a “reasonable commuting distance.” The federal courts have never held these restrictions should be added.

The BIA has added those restrictions.

Nevertheless, the nature of the criticism about the land-into-trust process has never changed, and efforts to address that criticism have never gone far enough. They never will.

That is because most of this criticism isn’t aimed at improving the land-into-trust process; it is aimed at preventing Indian tribes from having land placed into trust in the first place, taking land out of trust, or placing tribal lands under the control of local governments. Just see the Testimony of Ledyard, CT Mayor Fred Allyn III earlier this month (echoing the criticism from 1980):

Second, all other lands should only be taken into trust when clear, objective standards have been met, and the concerns of local governments have been satisfied. In particular, tribes should be required to seek solutions to trust land requests before seeking BIA approval; local governments should be consulted early in the process; and no acquisition should be approved unless impacts to the local community have been addressed and mitigated, either through binding agreements with the tribe, or enforceable federal decisions. Meaningful requirements should be established for Tribes to prove the need for trust land, as envisioned by Congress in 1934. And no change in use or purpose should be allowed without a new decision.

In addition, the Secretary’s authority to take land out of trust should be confirmed.

We should stop pretending that this criticism is about improving the land-into-trust process.

Only Congress can make those changes (not that they should).

In the meantime, the BIA’s existing regulations provide ample authority to seriously consider how a tribal land acquisition will affect neighboring communities. The facts set forth above show that this process accounts for state and local interests – 9 out of 10 tribal land acquisitions go unchallenged. Moreover, the numbers simply do not show off-reservation lands being placed into trust on a large scale.

Changing the BIA’s regulations to make it even harder for tribes to put land into trust would not advance the policy set forth in the Indian Reorganization Act. Instead, it would simply grant the opponents of the land-into-trust process what they’ve been after for decades.

Remarks by President Trump and Secretary of Energy Rick Perry at White House Tribal, State, and Local Energy Roundtable

Written remarks available here.

Video and photos here.

Tribes represented at the roundtable include: the Crow Nation, Chickasaw Nation, Ute Tribe (U&O Reservation), Southern Ute, Navajo Nation, Hopi, Three Affiliated Tribes of Ft. Berthold, and the Sault Ste. Marie Tribe of Chippewa Indians (among others)

From the President’s Remarks:

I’m proud to have such a large gathering of tribal leaders here at the White House.  I look forward to more government-to-government consultations with tribal leaders about the issues important to Indian Country.  We love Indian Country, right?

Many of your lands have rich, natural resources that stand to benefit your people immensely.  These untapped resources of wealth can help you build new schools, fix roads, improve your communities, and create jobs — jobs like you’ve never seen before.  All you want is the freedom to use them, and that’s been the problem.  It’s been very difficult, hasn’t it?  It will be a lot easier now under the Trump administration.

For too long the federal government has put up restrictions and regulations that put this energy wealth out of reach.  It’s just totally out of reach.  It’s been really restricted, the development itself has been restricted, and vast amounts of deposits of coal and other resources have, in a way, been taken out of your hands.  And we’re going to have that changed.  We’re going to put it back in your hands.

These infringements on tribal sovereignty are deeply unfair to Native Americans and Native American communities who are being denied access to the energy and wealth that they have on their own lands.  Many of our states have also been denied access to the abundant energy resources on their lands that could bring greater wealth to the people and benefit to our whole nation.  We’re becoming more and more energy dominant.  I don’t want to be energy free, we want to be energy dominant in terms of the world.

 

The President’s Budget Cuts for Treaty Rights Funding Affect Jobs

Leaders from across Indian country have expressed concern and criticism over the President’s proposed Indian Affairs budget. The President has proposed to slash the budget across the board for tribal programs. The effects of this proposal have been detailed by former Assistant Secretary Kevin Washburn, former Acting Assistant Secretary Larry Roberts, and Reporter Mark Trahant.

I want to take some time to focus on the impact of one particular cut in the President’s budget proposal: Rights Protection Implementation. You can read the entire proposed budget for Indian Affairs here (Rights Protection Implementation begins at page “TNR 10”).

As with all FedSpeak, the term “Rights Protection Implementation” may appear uninteresting on its face. But, it’s actually really important.

Bear with me for a bit, as this requires some explanation.

Rights Protection Implementation – or, “RPI” in FedSpeak – is a line item in the Federal Budget that directly funds the implementation of court orders relating to tribal treaty rights.   This funding is used by 49 different tribes across the United States. The President’s budget proposal itself describes the purpose of this line item:

The Rights Protection Implementation program supports the implementation of Federal court orders that resulted from decisions in complex, off-reservation treaty rights litigation. These cases were based on large land cession treaties in which the signatory tribes conveyed land to the United States and reserved the right to hunt, fish, and gather within the territory ceded. These rights apply beyond particular reservation boundaries and are shared among multiple tribes. Therefore, they have intertribal co- management implications as well as implications for management with other jurisdictions. The Federal Government has generally been a party to or a supporter of the tribes’ claims.

The court orders referenced by the President include federal court decisions in these cases: United States v. Washington; United States v. Oregon; and, United States v. Michigan.

In each of those cases, the Federal Government, as the trustee, brought lawsuits against states on behalf of Indian tribes to protect and enforce tribal treaty rights for hunting and fishing. The courts uniformly recognized that tribal sovereignty means a lot, including not only the authority to exercise the reserved right, but the reserved authority to manage the resource. In each of these lawsuits, the United States negotiated settlement agreements (often called “consent decrees”) on behalf of the tribes. Those agreements require the tribes and the states to fulfill certain responsibilities to ensure that tribal rights are protected and exercised in a meaningful way.

For example, in the case of United States v. Michigan, the Federal Government (and the tribes) reached a consent judgment with the State of Michigan in 2000. As part of that agreement, the tribes take on a number of responsibilities. They include:

• Providing law enforcement of fishing activities over thousands of square miles in Lake Huron, Lake Michigan, and Lake Superior (look at a map to see just how big this area is);
• Collecting data on the fishery in Lake Huron, Lake Michigan, and Lake Superior; and,
• Tracking the sale of harvested fish.

These activities require specially trained employees – such as law enforcement officers, judges and court staff, and biologists. In other words, these activities cost money. The same is true in other consent decrees in similar cases, which is why the Federal Government agreed to provide funding for these activities in the consent decrees.

There are other court decisions funded by this budget line item where the Federal Government wasn’t a party to the litigation. They include: Lac Courte Oreilles v. Voigt, Minnesota v. Mille Lacs and Grand Portage v. Minnesota. Federal funding is necessary for these cases as well, because the tribes must comply with court orders in order to exercise the rights they protected under treaties with the Federal Government.

The RPI line item provides tribes with the funding they need to meet court-ordered requirements in exercising treaty rights. In many cases, the Federal Government agreed to those requirements on tribes’ behalf (or nudged tribes to accept those requirements). This funding is necessary for tribes to continue to be able to exercise the treaty rights they reserved and, later, fought to protect in court.

Now that you have a basic understanding of the purpose of this funding, we can begin to understand the impact of the President’s proposed budget cuts.

President Trump has proposed to cut this line item by a whopping 24%. At any level of government, a 10% budget cut would be considered drastic. Cuts at this level – especially when paired with budget cuts to law enforcement, conservation, wildlife, etc. – will impair the ability of tribes to fully implement their treaty rights. If tribes cannot comply with those court orders their treaty rights are put into jeopardy. So are real jobs.

Tribal treaty rights protect more than cultural and spiritual values, which are invaluable in their own right. They protect the ability of tribal members to earn a living. They also benefit the economy in areas around Indian country in the Great Lakes and the Pacific Northwest.

In Michigan alone, there are 209 tribal fishermen who are licensed to fish under the 1836 Treaty of Washington and the court orders in United States v. Michigan. In economically depressed areas like northern Michigan, these can be good-paying jobs (albeit, demanding and dangerous jobs). Those fishermen buy gas, gear, and goods for their operations at local stores, and their catch is bought by restaurants and markets across the region.

Treaty rights are economic rights. As the Supreme Court stated in the 1905 case of United States v. Winans, those rights “were not much less necessary to the existence of the Indians than the atmosphere they breathed.”

The 2000 consent decree in United States v. Michigan expires in 2020 – just three years from now. The Federal Government and the tribes must negotiate a new agreement with the State of Michigan to take its place. A 24% funding cut to Rights Protection Implementation will hurt the ability of tribes to collect the data necessary to protect their interests in those negotiations. It will also affect conservation enforcement activities, which will subject the tribes to claims that they aren’t fulfilling their end of the bargain. At the end of the day, this will lead to job losses and economic damage in an area of the country that voted for the President.

The RPI funding item in the Federal Budget lies at the heart of the relationship between the Federal Government and Indian tribes because it deals directly with the exercise of treaty rights.

The Federal Government agreed that Indian tribes should take a lead in managing the resource for current and future generations in exercising those rights, but now seeks to frustrate the ability of tribes to fulfill those obligations through a 24% funding cut (much in the same way the President has proposed dramatic cuts to contract support cost funding for tribes). And, in Michigan at least, this proposed cut comes at a time when tribes are preparing to negotiate a new consent decree to protect treaty rights and jobs.

Congress must act to protect this funding. Doing so will protect jobs, resources, and rights for thousands of people across the United States.

Navajo Nation Office of the President Seeking Legal Intern

Office of Legal Counsel Office of the President and Vice President is seeking a summer legal intern.  Law students are preferred.  Those interested in applying should contact Karis Begaye, Legal Counsel in the Office of the President and Vice-President, at knbegaye@navajo-nsn.gov.

Full posting is here: Legal Internship opening

State of Michigan sues Hannahville Indian Community over Gaming Compact

The State of Michigan has filed a lawsuit against the Hannahville Indian Community.  The State is asserting that the Hannahville Indian Community’s class III gaming compact has expired (the agreement was executed in 1993).

A copy of the complaint is here:Hannahville Complaint

Hannahville’s Class III gaming compact is here: Hannahville Class III Compact

The Hannahville Compact is one of seven tribal-state gaming compacts the State of Michigan executed in 1993 – all for the same term of years.  The State has argued that six of those agreements expired in 2013, but this is the first lawsuit it has filed.

The State’s complaint is likely to be dismissed on the basis of tribal sovereign immunity, but the timing of this lawsuit – just two months into the Trump Administration – may signal a larger effort to appeal to the Federal Government exert pressure on the Michigan tribes who have similar gaming compacts.  It is unclear whether the State intends to file similar lawsuits against the other tribes with 1993 gaming compacts.

My earlier commentary on the 1993 compacts is here and here (which includes a discussion over whether Michigan’s 1993 gaming compacts have expired)

Bureau of Indian Affairs Updates Tribal Transportation Regulations

Final rule is available here.

Here is the Summary:

This final rule updates the Tribal Transportation Program regulations (formerly the Indian Reservation Roads Program) to comply with statutory updates. The Tribal Transportation Program is a program to address the surface transportation needs of Tribes. This rule reflects statutory changes in the delivery options for the program, clarifies the requirements for proposed roads and access roads to be added to, or remain in, the inventory, revises certain sections that were provided for informational purposes, and makes technical corrections.